Groups appeal amendment to Utah Constitution
They oppose voting requirements for altering wildlife laws
By Joe Bauman
Deseret Morning News
An amendment to the Utah Constitution discriminates against Utahns with a certain flavor of opinion and should be tossed out, says an appeal to the U.S. Supreme Court.
Target of the appeal is a 1998 amendment to the state constitution that requires a two-thirds vote in any referendum to change hunting and fishing laws. The amendment was upheld by the U.S. District Court and the 10th Circuit Court of Appeals.
Some groups and individuals interested in wildlife want the highest court to examine the issue. They include the Initiative and Referendum Institute, Humane Society of the United States, Fund for Animals, conservationist Dick Carter and his High Uintas Preservation Council, the Humane Society of Utah and several other individuals.
Named as respondents are Lt. Gov. Gary Herbert and Attorney General Mark Shurtleff.
If the Supreme Court accepts the petition for a writ of certiorari that the groups mailed Friday, they will have one last chance to challenge the amendment. If not, apparently the latest ruling stands.
The petition states that the question to be decided by the Supreme Court is: "Whether the First Amendment prohibits a state from imposing both content- and viewpoint-based restrictions upon an initiative process with the purpose of diminishing the voice of voters who favor one viewpoint relative to those with an opposing viewpoint.
"The courts of appeals are in conflict on this question."
Many discrimination lawsuits are filed under the 14th Amendment to the U.S. Constitution, which upholds equal protection of the laws. But this situation is unusual in that nobody is discriminated against because of race, according to the appellants.
Instead, they have filed under the First Amendment, which protects the rights of Americans to freely petition for redress. In this case, the right of those opposed to hunting to seek redress is not as great as those who seek redress through referendum concerning any other issue, according to petitioners.
"Any other subject upon which people might seek to have an initiative petition requires a simple majority," said Michael D. Zimmerman, former chief justice of the Utah Supreme Court, who is representing the groups in the petition. The argument by the groups is that every vote cast in favor of an initiative change in wildlife taking laws "is worth half a vote against," he said.
"We argue that's putting the finger on the scale" in an election.
The First Amendment, with its equality of the right to petition, does not allow such weighting, according to the petitioners.
A history of the amendment is set out straightforwardly in the petition, he said. "It was quite clearly put in the (state) Constitution for one purpose only, which was to prevent passage of any laws which could further restrict the taking of wildlife," Zimmerman added.
The petition quotes then-Sen. Leonard Blackham, R-Moroni, as saying anti-hunting movements "pose a very real threat. There's no place in the nation, in fact, where the animal-rights people are stronger in their actions than they are right here in Utah."
Troy L. Booher, also representing the petitioners, said, "If you categorize people for their viewpoints you run into constitutional problems."
Both attorneys believe federal courts have overturned provisions of state constitutions.
"States' constitutions have to be compatible with the federal Constitution," Zimmerman said. "The federal Constitution overrides all inconsistent laws, state and federal, including state constitutions."
Paul Murphy, spokesman for the Utah State Attorney General's Office, said nobody knows if the Supreme Court will hear the case. If it does, the office has not yet decided how it will respond, he said.
Booher said the court could decide by the end of the year whether to accept the case.
http://deseretnews.com/dn/print/1,1442,650199333,00.html
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